May 2021 SDR – Voice for the Defense Vol. 50, No. 4

Voice for the Defense Volume 50, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Props are due this month. Jason Niehaus of Denton defended the Michael Morton Act in a case that should be added to all of our form requests for discovery under Article 39.14 of the Code of Criminal Procedure. Allison Clayton of Lubbock, and Lane Haygood of Odessa added their touch as drafters of the Texas Criminal Defense Lawyers Association Amicus Curiae brief. Several cases this month involve interpretations of the SCOTX Emergency Orders Regarding the COVID-19 Pandemic (just in time for the end of the pandemic)(knocking on all of the wood). Other than that, just some Boyz II Men trivia to look out for here. Enjoy!

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

Kyle Therrian

United States Supreme Court

Torres v. Madrid, 141 S. Ct. 989 (2021)

Issue. Does a Fourth Amendment seizure occur when the police shoot at a person evading arrest?

Facts. Officers were serving an arrest warrant at an apartment complex. Officers observed Torres standing with another person near a vehicle in the parking lot. Officers determined neither Torres nor the companion were the target of the warrant. Officers tried to speak with Torres as she attempted to drive away. One officer attempted to open her door. Torres was experiencing methamphetamine withdrawals and thought the officers were carjackers. As she sped away, officers fired their guns at her 13 times striking her twice and paralyzing her left arm. Torres sued the officers under 42 USC 1983 claiming a deprivation of her constitutional rights and that the officers “applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment.” The district court granted summary judgment in favor of the officers. The Tenth Circuit affirmed, indicating “no seizure can occur unless there is physical touch or show of authority and that such physical touch (or force) must terminate the suspect’s movement or otherwise give rise to physical control over the suspect.”

Holding. At common law, an officer’s application of physical force, of any amount, with the intent to apprehend was sufficient to find a seizure exists, also known as “the mere touch” rule. The Court finds no principled reason to find that shooting a person—a greater intrusion—does not constitute a seizure. The rule announced by the court is narrow. “In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force.”

Texas Court of Criminal Appeals

Watkins v. State, No. PD-1015-18 (Tex. Crim. App. 2021)

Issue. Where in Article 39.14 of the Code of Criminal Procedure the legislature mandates the prosecution’s disclosure of “evidence material to any matter involved in the case,” does the legislature mean what it says?

Facts. Defendant was sentenced to 70 years confinement as a habitual felony offender. In the punishment phase of trial, the State entered 34 exhibits comprised of “booking records, pen packets, and judgments of prior convictions for enhancement and other extraneous offenses that Appellant had committed.” Defendant had previously made two requests pertaining to this evidence: (1) a request for notice of State’s intent to offer extraneous offenses, and (2) a discovery request pursuant to Texas Code of Criminal Procedure Article 39.14 (“Michael Morton Act”), wherein he requested “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.” The State provided notice but did not produce to the defense any of the extraneous offense evidence until they introduced it at trial. At trial, the prosecutor argued that he did not believe Article 39.14 applied to punishment. The trial court initially sustained an objection to the punishment evidence but then reversed its decision. On Appeal the State conceded that Article 39.14 applies to punishment evidence, but proof of extraneous offenses is not “material to any matter involved in the case.” The court of appeals agreed and explained that the Court of Criminal Appeals had interpreted the phrase “material to any matter involved in the case” prior to the Michael Morton Act amendments as meaning “there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.” According to the court of appeals, this interpretation survived the 2013 Michael Morton amendments.

Holding. Yes. “Material” means the same thing as “relevant” and the prosecutor’s duty to disclose material evidence extends to evidence of guilt, punishment, and numerous subsidiary issues. Here the punishment evidence proving previous convictions was material to the punishment. “[W]e construe the amended statute as adopting the ordinary definition of ‘material.’ Evidence is ‘material’ if it has ‘some logical connection to a consequential fact.’ Whether evidence is ‘material’ is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial.” Prior to the enactment of the Michael Morton Act, the Court of Criminal Appeals often held that Article 39.14 did not provide a general right to discovery and “[t]he decision on what was discoverable was left to the discretion of the trial court.” But the newly amended Article 39.14 exists against a considerable backdrop which informs the court’s interpretation of “material.”

The wrongful conviction of Michael Morton inspired the legislative amendments to Article 39.14 in 2013.

The wrongful conviction of Michael Morton was achieved by a prosecutor’s wrongful withholding of exculpatory evidence.

The Michael Morton Act was a comprehensive overhaul of criminal discovery practice.

The Michael Morton Act broadened the duty to disclose evidence which is ordinarily discoverable under due process and Brady v. Maryland.

The Michael Morton Act abandoned the requirement of a court order to obtain discovery.

The Michael Morton Act expanded the list of discoverable items and the number of people from whom evidence is discoverable.

The Michael Morton Act provided for an ongoing duty to disclose evidence even after the disposition of the case in the trial court.

The Michael Morton Act expanded the traditional due process / Brady v. Maryland duty to disclose.

“Nothing in the text suggests that the character of the evidence should be judged solely in relation to its consequential effect on the ultimate issues of guilt or punishment.” The defense need not make the case for good cause to the prosecution when demanding evidence, and the disclosure obligation exists notwithstanding a prosecution’s evaluation of defense theories and how that evidence might fit into the defense’s case. Despite this clear duty, harm analysis still remains a viable excuse for the State when they get caught not disclosing evidence.

Dissent (Keller, J.) The legislature rejected the use of the word “relevant” in the most recent amendments to Article 39.14 and used the term “material” which was previously interpreted by the Court to be limited to outcome determinative evidence. The Legislature could not have meant “material” to have meant “relevant” under these circumstances.

Dissent (Yeary, J.) Agrees with Judge Keller, but writes to emphasize that legislative intent should not be the end-all of statutory construction. “[T]he word ‘material’ simply means ‘material.’”

Comment. Kudos to appellate attorney Jason Niehaus of Denton, and TCDLA Amicus drafters Allison Clayton of Lubbock and Lane Haygood of Odessa. Update your form 39.14 requests with this case.

Najar v. State, No. PD-1049-19 (Tex. Crim. App. 2021)

Issues. (1) In a motion for new trial, is a trial court afforded “almost total deference” when it resolves uncontroverted defense-facts against the defendant? (2) Is a jury’s consideration of a siren heard outside the courthouse the type of evidence which can be used to impeach the jury’s verdict because it constitutes an “outside influence improperly brought to bear upon any juror?”

Facts. A jury convicted the defendant of evading arrest. He argued at trial he could not hear or see the police until they were directly behind him. After the trial, defense counsel learned from a juror that the jurors “heard a siren outside of the building, they made assumptions about the case based on that siren, and it affected their deliberations.” Trial counsel moved for a new trial on the basis of the jury’s consideration of an outside influence and presented affidavits sworn by trial counsel in support. When trial counsel admitted the affidavits counsel stated “I think the State agrees with the factual basis of that affidavit, which is, this conversation with the jury took place. . . .” The prosecution responded: “[t]hat’s correct.” Counsel requested findings of fact from the trial court, but none were made. The Court of Appeals reversed the trial court’s denial of defendant’s motion for new trial.

Holding. (1) Yes. An old since-recodified statute provided that a judge shall hear evidence and determine the issue presented in a motion for new trial when the State takes issue with the “truth of the causes set forth in the motion for new trial.” Somehow courts developed a corollary to this rule: that when the matter is uncontested, the trial court must accept the factual assertions as true. Texas Rule of Appellate Procedure 31(b) removed the State’s duty to controvert the truth of the allegations. “A trial court is not bound to believe a particular fact unless it is conclusively established.” (2) No. Texas Rule of Evidence 606(b) does not permit the juror testimony to impeach a verdict absent two exceptions. One exception is testimony “about whether an outside influence was improperly brought to bear on any juror.” Because no juror was responsible for the sounding of the siren and the siren was not intentionally broadcast to impact the jury’s deliberation, it was not “brought to bear” on their deliberations. It just happened.

Comment. Appellant noted that the State failed to argue in the trial court that Rule 606(b) limits jury deliberation evidence. The Court explains that an appellee need not preserve arguments for appellate purposes because rulings are upheld under any supportive theory. The Court explains, “[p]reservation rules are ‘judge-protecting’ rules.” None of this is wrong, but we should just get rid of this justification. We didn’t enter a social contract and create a criminal justice system in order to protect the interests of lawyers who ascend to the judiciary. Rules of Appellate Procedure which mandate the citizen lose his or her appeal based on unlitigated legal theories should be limited in scope and tailored to litigant fairness (not judge fairness). If the unlitigated issue indisputably reaches the same result on the known facts, and the defendant would unlikely produce new outcome-determinative facts if given an opportunity, then it would seem warranted to uphold a ruling based on so many better justifications such as judicial economy or harm analysis.

Brown v. State, No. PD-1292-19 (Tex. Crim. App. 2021)

Issue. Does dishonesty to a process server and a prior assault against the same victim constitute sufficient facts to find that the defendant waived his right to confrontation of the alleged victim in his assault case via the doctrine of forfeiture by wrongdoing?

Facts. Defendant was charged with assault family violence by strangulation and had once been previously convicted of assaulting the same victim. Defendant set his case for trial which resulted in a DA investigator attempting to serve a subpoena on the alleged victim at the victim and defendant’s mutual home. Defendant answered the door and said that he and the victim had split up, hadn’t seen her for a long time, and didn’t know where to find her. The investigator would later find pictures of the victim and the defendant on Facebook hanging out during the period of time the defendant indicated he hadn’t seen her. Ultimately the investigator was able to locate the victim at the mutual home and serve the victim with a subpoena. The victim did not show for trial. The State convinced the trial court to admit hearsay statements of the victim made on the day of the arrest under the exception to Sixth Amendment confrontation whereby a defendant waives his or her right to confrontation by procuring the witnesses unavailability through wrongdoing. The court of appeals found that defendant’s deception which thwarted the attempt at serving the subpoena constituted sufficient wrongdoing under the rule.

Holding. No. The Common Law doctrine of forfeiture by wrongdoing, codified by Article 38.49 of the Code of Criminal Procedure, provides that a defendant waives and forfeits his right to confrontation when, through his wrongful conduct, he procures the unavailability of a witness. The doctrine requires conduct that is calculated to prevent a witness from testifying and there must be a causal connection between the witness’s unavailability (decision not to testify) and the defendant’s conduct. The Court highlights cases from multiple states which hold that the causal connection is far closer to tort law’s requirement of proximate causation rather than but-for causation. Here, the fact that the defendant lied to an investigator about the alleged victim’s whereabouts and continued living with her during the pendency of his case was not sufficient evidence to satisfy the forfeiture by wrongdoing doctrine. “[N]o one has pointed to anything Appellant did during his post-offense, pretrial period that might have influenced Hutzelman’s decision, and in fact, there is no evidence that Appellant did anything to try exert such influence.”

Dissent (Yeary, J.) Would hold the misleading conduct sufficient wrongdoing to satisfy the doctrine, but questions whether the State has shown that the witness was truly unavailable. Would send the case back to the court of appeals for further analysis on this issue.

Comment. A witness isn’t unavailable until compulsory process has failed. If a defendant wishes to preserve error in the denial of compulsory process, he or she must follow a three-step process to preserve error: (1) seeking a writ of attachment, which the trial court must deny; (2) showing the court what the witness would have testified to; and (3) demonstrating that the witness’s testimony would have been relevant and material. Shouldn’t the State have to follow this process, at a minimum, before extinguishing a person’s constitutional right? Both the majority and the dissent have good points on whether the defendant’s wrongful conduct constituted sufficient wrongdoing under the doctrine of forfeiture by wrongdoing. The overwhelming majority of Texas cases on the issue, however, involve threats or violence directed at a witness.

In re State ex Rel. Ogg, No. WR-91,936-01

Issue. During the COVID-19 pandemic and pursuant to the Supreme Court emergency orders permitting trial court suspension of statutory procedures, may a trial court proceed to a bench trial over the State’s objection in contravention of State’s authority to demand a jury trial under Texas Code of Criminal Procedure article 1.13?

Facts. This is the appeal of the 14th District Court of Appeal opinion authorizing trial courts to suspend the State’s authority to demand a jury trial during the pandemic. The facts from the previous SDR are copied here. Kim Ogg is the Harris County District Attorney. Ogg filed petitions for writs of mandamus and prohibition challenging a Harris County court at law judge’s authority to conduct a bench trial without the consent and waiver of jury trial by the State. The defendant had moved for speedy trial on his misdemeanor charges following removal from a pretrial intervention (or pretrial diversion) program. The defendant requested a trial before the court (bench trial) because jury trial was prohibited under the current orders of the Texas Supreme Court regulating court proceedings during the COVID-19 pandemic. In his request for a bench trial, the defendant requested the trial court waive the requirements of Texas Code of Criminal

Holding. No. The Supreme Court Emergency Orders (and the underlying statute permitting such orders) give trial courts the authority to modify deadlines and procedures. The orders presuppose a pre-existing power or authority over the proceedings. Here, the trial court’s authority to preside over a proceeding as the fact-finder is not a mere procedural matter. The trial court and the court of appeals improperly used the Supreme Court Order to enlarge the trial court’s jurisdiction to try a case without a jury and without the State’s consent.

Comment. I sang praises of the defense attorneys involved in this case when they won at the court of appeals. I still do. Bench trials are the natural pandemic-era solution to a careful balance between health and public safety and the Sixth Amendment right to a speedy trial. The fact that this person’s offense and background initially merited admission into a diversion program but then his case became a tooth-and-nail fight all the way to the Court of Criminal Appeals certainly lends credence to the appearance that the district attorney made this case personal. I don’t know if it would be fair to weigh against the State this purely optional appellate litigation into the “reason for the delay” prong of a Barker v. Wingo speedy trial dismissal argument, but, quite literally, the only reason this person cannot not have a speedy trial is because the State prohibits it.

Barrett v. State, No. PD-1362-18 (Tex. Crim. App. 2021)

Issue. Is bodily-injury assault a lesser-included offense of occlusion assault (strangulation/impeding organ)?

Facts. These are consolidated cases involving the prosecution of “occlusion assault” (strangulation). Both defendants were denied a lesser-included instruction at trial on bodily-injury assault.

Holding. No. The relevant statutory definition of a lesser-included offense provides: an offense “established by proof of the same or less than all the facts required to prove the offense charged.” Tex. Code Crim. Proc. art. 37.09. A two-step analysis is used to determine whether a lesser-included instruction is appropriate: (1) compare the elements of the purported lesser-included offense (defined by the allowable unit of prosecution) with the statutory elements of the charged offense (defined by the allowable unit of prosecution), and (2) determine whether there is some evidence that would permit the jury to find the defendant guilty of only the purported lesser-included offense.

[T]he allowable unit of prosecution for occlusion assault is impeding the breathing or circulation of blood. An injury other than impeding is established by different or additional facts than those required to establish impeding, so bodily injury assault that results in a non-impeding injury is not an included offense of occlusion assault.”

* * *

Impeding is a “form of bodily injury.” Marshall v. State, 479 S.W.3d 840, 844 (Tex. Crim. App. 2016). Since the statute specifies impeding, it excludes other injuries. Impeding is exclusive of other injuries in the same way that a square is exclusive of other rectangles: A square is a rectangle, but other rectangles are not squares; specifying ‘square’ excludes non-square rectangles; and specifying “impeding” excludes non-impeding injuries.”

Unlike assault offenses with aggravating factors (i.e. upon a public servant or using deadly weapon) you cannot excise the conduct of occlusion and leave the offense of assault remaining. Occlusion is the gravamen of the offense. The court overrules by implication. Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005). In Irving the court provided that a lesser-included offense must involve the same alleged manner and means as that contained in the charging instrument. The Irving analysis is faulty because non-statutory manner and means are not the unit of prosecution, their nonproof would not give rise to a material variance at trial, and therefore should not restrict theories of lesser-included criminal conduct.

Concurrence and Dissent (Yeary, J.).

“I simply cannot agree that, as a matter of law, simple assault may never be a lesser-included of ‘occlusion assault.’” You can’t commit an occlusion assault without first causing bodily injury. You can apply pressure to the throat or neck and fail to impede breath or blood and still have committed an assault.  Judge Yeary declines to join Judge Keller’s dissent. Judge Keller would hold that bodily injury assault would include all physical injuries sustained in an assaultive transaction. Judge Yeary is inclined to hold that every punch, kick, or pinch is an individual assault.

Dissent (Keller, J. joined by Walker and Slaughter, JJ.).

Bodily injury includes all physical injuries sustained in a single transaction. Occlusion is not the unit of prosecution. Family violence assault appears in the assault statute among a list of things that make an assault extra bad. If the court holds that the other four in the list do not constitute separate and distinct offenses, then family violence cannot constitute a separate and distinct offense. Occlusion is a subsection of the family violence aggravator. It appears parallel alongside another subsection for prior convictions. A prior conviction is clearly an aggravating element. So to must be occlusion.

Comment. Which of the following are not a methodology of defining elements of an offense:

(a) a hypothetically correct jury charge
(b) a theoretically well-crafted indictment
(c) allowable units of prosecution
(d) eighth-grade grammar tests
(e) ninth-grade grammar tests
(f) sixth-grade spelling bee
(g) gravaminas
(h) gravmen
(i) boys2men

Although technically incorrect, we will award points to anyone who answered: “ABCBBD.”

Harbin v. State, No. PD-0059-20 (Tex. Crim. App. 2021)

Issue. Was it proper for the court of appeals to require the application of the 1994 statute for sudden passion in a case of resentencing for an offense committed in 1991?

Facts. Defendant was granted a new punishment trial after successfully showing in a writ of habeas corpus that the prosecution failed to disclose mitigating information about the victim’s psychiatric history and defense counsel’s failure to sufficiently investigate and present mitigating evidence. At the time of defendant’s initial trial, the Penal Code permitted conviction for voluntary manslaughter in lieu of murder when sudden passion is found. The legislature repealed this option and replaced it with a jury option to sentence a defendant convicted of murder to a second-degree punishment range instead. This repeal occurred in 1994, after defendant’s offense date.

Holding. The legislature made the sudden passion statute prospective only. The Court of Appeals’ granting of a new trial to require the retroactive application the sudden passion statute was in error. The rule of retroactive application of newly announced U.S. Supreme Court decisions in the context of habeas proceedings is inapplicable here because this is not a habeas case, and the rule was not handed down from the U.S. Supreme Court.

Flores v. State, No. PD-0064-20 (Tex. Crim. App. 2021

Issue. When a defendant conceals an electric drill and causes someone to believe it is a gun, has he used or exhibited a deadly weapon?

Facts. Defendant was convicted of aggravated robbery by virtue of his use or exhibition of a deadly weapon. Defendant used an electric drill he concealed sufficiently to cause the store clerk he robbed to believe he had a gun. At trial, store clerk testified that the defendant never attempted to strike her with the drill or made any such threats that he would utilize a drill to cause her harm. The lead detective testified to all the ways a drill could be used as a deadly weapon. However, surveillance showed no such use by the defendant. 

Holding. No. Determining whether sufficient evidence supports a deadly weapon finding requires a two-step process: (1) whether the object in question could be a deadly weapon under the facts of the case, and if so, (2) determine whether the deadly weapon was used or exhibited. The court of appeals erroneously analyzed the first step as an issue of whether the drill could be used as a deadly weapon in the abstract. Because any object could qualify as a deadly weapon, it is meaningless to focus on the nature of the object. “[I]t is only the manner of the defendant’s use or intended use that provides any meaningful limitation to the broad statutory definition.” Defendant’s use of the drill was to threaten a shop owner by causing fear that he possessed a gun. No evidence support that he used or intended to use the drill in an actual deadly manner such as bludgeoning or stabbing with the drill bit.

Dissent (Hervey, J.).

Reasonable minds could differ on whether the defendant was close enough to bludgeon the store clerk with the drill. This is enough under Jackson v. Virginia.

Dissent (Keel, J.).

“Appellant intended to intimidate, manipulate, and steal from his victim, and he accomplished his objectives by brandishing a menacing-looking object that turned out to be a drill.” He indicated he would hurt the clerk if the clerk did not comply.

Comment. This is a tough call. I agree somewhat with the Keel dissent. But there is something to be said about the fact that the legislature did not define a deadly weapon as “anything that in the manner of its use or intended use is capable of placing another in fear of death or serious bodily injury.”

Carter v. State, No. PD-0575-19 (Tex. Crim. App. 2021)

Issue. To qualify as a synthetic drug under Penalty Group 2-A a substance must have certain components appearing in certain positions in a chemical compound. When the State presents testimony of an analyst who concludes that a substance satisfies the requisite compound structure, but doesn’t testify to the identify or positioning of specific components, has the State sufficiently shown that a substance in question is a synthetic drug?

Facts. Defendant operated smoke shops in Lubbock County and sold a leafy substance called “Chilly Willy.” In 2014 he received a letter from the Lubbock County District Attorney warning him that Chilly Willy was synthetic marijuana. In response, Defendant sent his Chilly Willy to a lab for testing (a DEA certified lab according to his briefing to the court). The DEA certified lab determined that Chilly Willy did not contain “fluoro-ADB” the relevant compound which purportedly has a prohibited chemical structure making it a synthetic drug. The State’s laboratory found otherwise, and the defendant was prosecuted. At trial, the State presented expert testimony through a controlled substance analyst. After testifying to his lab’s methodology for testing Chilly Willy, the analyst testified that he concluded that Chilly Willy contained fluoro-ADB. The analyst neither indicated what components were contained in fluoro-ADB nor their positioning in the chemical compound. The jury sentenced the defendant to 90 years.

Holding. “We conclude that, when looking at all of [the analyst’s] testimony, a rational trier of fact could reasonably infer that his analysis established that fluoro-ADB satisfied the criteria of Section 481.1031(b)(5): that indazole (The core component) was substituted at the 1-position to any extent, and substituted at the 3-position with carboxamide (the link component) attached to methoxy dimethyl oxobutane (the group A component)—even though he did not explicitly say so.” The analyst testified that fluoro-ADB contained indazole, carboxamide, and methoxy dimethyl oxobutane. When the analyst responded in the affirmative to the defense question “[a]nd that’s what makes a compound, the place where the molecules are stuck, correct?” the analyst effectively communicated to the jury that the molecular position of those components made it a synthetic drug prohibited under Penalty Group 2-A. The jury could rationally infer that the analyst looked at the compound and found the components to be in the necessary positions.

Comment. I have a serious problem that a DEA certified lab told this man that his substance was not a synthetic drug and now he is in prison for 90 years. This opinion, and the summary, are a tough read. Basically, the statute requires the existence of specific components in specific positions in a chemical compound. This opinion allows juries to trust that the expert saw the components in the right spots without explicitly stating it.

Holoman v. State, No. PD-1339-18 (Tex. Crim. App. 2021)

Issue. May the State prove a prior conviction for purposes of enhancing a class A assault family violence to a felony assault during the punishment phase of trial?

Facts. The State charged the defendant with assault family violence by strangulation / occlusion. The State only proved a misdemeanor assault at trial. At the punishment hearing, the State requested, and the trial court agreed, to use one of defendant’s prior assault family violence charges to enhance defendant’s offense to a third-degree felony. Defendant objected to the use of the prior assault conviction to enhance the jury’s conviction from a misdemeanor to a felony. The State conceded that ordinarily, such a fact is jurisdictional and must be proven during trial. But the State argued that their pleading of an alternative jurisdictional element (strangulation/occlusion) absolved them of proving the prior conviction during guilt-innocence. In essence, the prior assault was no longer jurisdictional by virtual of the strangulation pleading.

Holding. As it pertains to prior convictions, legislative intent determines whether proof of such fact constitutes an element of the offense or merely a punishment issue. Ordinarily, prior convictions are punishment facts. But courts also look to several factors in making this determination. Whether the enhancing provision appears within the same subsection as the primary offense is relevant. Whether the enhancing language uses a phrase such as “if it is shown on the trial of . . .” is relevant. However, in all cases where the fact is one necessary to confer jurisdiction on the court, the fact must operate as an element of the offense. There are two ways to enhance a misdemeanor assault family violence to a felony: a prior conviction for the same offense, or strangulation / occlusion. The court rejects the State’s invitation to adopt a complicated standard for this unusual case – a standard makes the treatment of a prior conviction as elemental dependent on whether they have the ability to allege the alternative jurisdictional fact of strangulation / occlusion.

Comment. Shouldn’t the result in this case be an acquittal according to the Court of Criminal Appeals Decision in Barrett v. State decided only 3 weeks prior which provides that Simple Assault Family Violence is not a lesser included offense of Assault Family Violence by Strangulation/Occlusion?

Ex parte Thomas, No. WR-89, 128-01 (Tex. Crim. App. 2021)

Issue. Should the Court continue to require adherence to the requirements of Moon v. State, that juvenile courts make “factually supported, case-specific findings” when waiving jurisdiction and transferring prosecution to district court, when those requirements are neither statutory nor constitutionally mandated?

Facts. Defendant was 16 when he committed capital murder. After defendant reached the age of adulthood, the juvenile court waived its jurisdiction and transferred the case to district court where defendant was prosecuted as an adult and plead guilty to the lesser offense of murder. The juvenile court did not include in its transfer order any “factually-supported, case-specific findings” which now, decades later, are required by case law to bestow jurisdiction on the district court. 

Holding. No. In Moon v. State the Court held that an order waiving juvenile jurisdiction must be accompanied by “factually-supported, case-specific findings,” otherwise the order is invalid. 451 S.W.3d 28 (Tex. Crim. App. 2014). According to Moon, without such an order, the district court never acquires jurisdiction. To successfully transfer and bestow jurisdiction on a district court, the juvenile court must satisfy only the terms of the statute. Moon is a court-made requirement not mandated by statute or United States Supreme Court precedent. The statutory obligation of the transferring court is to merely state the statutory reasons for the waiver, not any case specific factual findings upon which they rest. In Kent v. United States, The United States Supreme Court held that due process guarantees a juvenile the right to a hearing and an order stating reasons for the transfer to adult court. 383 U.S. 541 (1966). “But Kent’s ‘reasons requirement for juvenile-transfer orders did not impose the ‘show your work’ rule that this Court came up with in Moon.”

Comment. The opinion concludes with some strong language about stare decisis. “Our resolution of the cognizability issue in this case has implicitly overruled Moon. Stare decisis principles do not prevent us from doing so explicitly. True, this Court should not frivolously overrule established precedent. But stare decisis is not an inexorable command.”

Concurrence (Yeary, J.). Concludes with even stronger language about stare decisis. “The Court is right to overrule Moon . . . . I would not hesitate over the decision to do so on account of the court-made doctrine of stare decisis, which is compelled neither by constitution nor statute.” “There may well be other reasons to afford due respect and defference to judicial precedents. But judicial precedents are not ‘the law itself’ . . .”

Another Comment. What is happening to stare decisis?

1st District Houston

Howard v. State, No. 01-19-00083-CR (Tex. App.—Houston [1st Dist.] Mar. 23, 2021)

Issues. (1) When officers have a subjective investigative intent, does a knock-and-talk investigation violate the Fourth Amendment by virtue of invading the privacy of a defendant’s curtilage? (2) Would a reasonable person believe they were under arrest, and thus subject to Miranda, when officers wearing body armor and with hands on their guns gesture for a person to come out of their home to talk about their suspicion of drug activity? (3) When officers conduct an unconstitutional protective sweep of a home and discover drugs which amplify their motivation to obtain a search warrant, is their subsequently obtained search warrant relying only on pre-protective-sweep facts unconstitutionally derived from an improper search? (4) When a warrant authorizes with the support of probable cause a search for marijuana, but also authorizes searches for multitude of other things without probable cause, is the good authorization severable from the bad authorization? 

Facts. Special agents with the Department of Public Safety approached the front door of defendant’s home to perform a knock-and-talk investigation. While at the door with the defendant and his house guest, agents smelled marijuana. Defendant admitted there might be marijuana in the home. Agents requested, but were denied, consent to search the home. Agents sought counsel from the Harris County District Attorney’s Office and were apparently advised to enter the home to conduct a protective sweep. During the protective sweep agents discovered marijuana and ecstasy. Then, following the protective sweep, agents obtained a warrant, asserting only those facts they had learned prior to conducting the protective sweep referencing only the odor of marijuana and defendant’s admission. The magistrate authorized in his warrant a search for marijuana, other narcotics and illegal substances, scales, narcotics packaging material, and drug paraphernalia. With this warrant in-hand, officers searched the home for marijuana but also found other drugs in plain view. 

Holding. (1) No. Absent express orders such as “no trespass” officers may enter upon residential property following the usual path to the front door to conduct a knock-and-talk investigation without offending the Fourth Amendment. (2) No. The officers asked permission to talk; they eventually took their hands off their weapons when they realized the defendant was not a threat; their guns were never drawn; the questioning was done outside; defendant was not handcuffed or transported to another location; there were no threats; defendant was never compelled to answer their questions about drug activity. (3) No. While the exclusionary rule requires suppression of “both primary evidence obtained as a direct result of an illegal search or seizure, as well as derivative evidence acquired as an indirect result of unlawful conduct,” the independent source doctrine absolves police of suppression when the evidence they discover is derived “separate and apart from any illegal conduct.” Here, the police are absolved of suppression if they would have sought and obtained a warrant without the observations they made through an illegal protective sweep. The record supports this conclusion; officers testified they planned to get a warrant as soon as they had evidence of the odor of marijuana and defendant’s admission. These were the only facts they relied on to obtain the warrant. The unconstitutional protective sweep is irrelevant. (4) Yes. Unlawful warrant authorizations may be severed from the lawful ones. Severing may not be appropriate where the main thrust of the warrant is a general search and there are a few minor items meeting the particularity requirement. But here, the warrant lawfully authorized a search for marijuana – not a minor item.

Concurrence (Goodman, J.). Writes separately to condemn the dishonesty of one of the police officers who stated in his warrant affidavit that he believed he would discover “marijuana, firearms, [and] other narcotics and illegal substances” based on the odor of marijuana smelled from outside the house. “[H]e failed to mention that he had actually seen ‘other narcotics and illegal substances’ inside the apartment during the illegal search.” It was simply illogical for this officer to conclude that he would find other drugs based on the smell of marijuana – he knew there would be other drugs and gave a misleading indication why he had that belief.

Comment. Ends-justify-the-means policing is often whitewashed by ignoring troubling but legally immaterial conduct of the police. Justice Goodman often does as much as he can within the confines of judicial restraint to call out those who treat the criminal justice system as an obstacle to catching and punishing the bad guys.

2nd District Fort Worth

Redmond v. State, No. 02-19-00381-CR (Tex. App.—Ft. Worth, Mar. 25, 2021)

Issue. (1) When the defendant advances a theory that he did not assault his wife and denies having assaulted his extra-marital girlfriend, may the State introduce an email from his extra-marital girlfriend detailing his abuse? (2) May the State impeach a testifying defendant with unadjudicated offenses identical to the single offense he admits committing on direct examination with the impression that it was an isolated incident? (3) May the State admit lots of hearsay evidence as long as the declarant testifies at trial?

Facts. Defendant stabbed his wife in the neck and brutalized her until she nearly died. Eventually, he relented to cries by his wife and his son to take his wife to the hospital. While en route, they detoured to a fire station to receive quicker medical attention. As the victim exited she promised to tell everyone her injuries were an accident and the defendant admonished “don’t make me kill you.” Once in the ambulance with medics and an investigator, she pleaded for help and for law enforcement to save her son from her husband. In a four-hour standoff, SWAT surrounded defendant’s home where he had returned with their son. After defendant emerged from the home with their son, officers entered and learned that defendant had cleaned the crime scene. At trial, the defendant advanced a theory that the two had engaged in mutual combat and the victim was fabricating a story to gain child custody. In addition to the victim telling her story from the witness stand, the State showed, through hearsay, that her statement remained consistent when told to the SWAT officer, the paramedic, and the investigating officer. The trial court allowed the State to admit a video of the victim’s initial report as well as a medical report containing the victim’s statements. The State was also granted permission to explore two lines of extraneous offenses: an abusive relationship with an extra-marital girlfriend, and his history of bank robberies. When questioned on these issues, the defendant gave a false impression that his affair did not end violently, and robbery was an isolated indiscretion. The State introduced extraneous evidence in response: an email from the girlfriend detailing abuse and photographic evidence of him robbing a bank more than once.

Holding. (1) Probably not. Here it was okay because the only objection raised was whether the evidence was proper under Texas Rule of Evidence 404(b). Here the hearsay email was introduced to rebut a defense theory and prove intent – both permissible non-character-conformity uses for extraneous offenses. The defendant did not object to hearsay at trial and only intertwines hearsay arguments into his briefing. (2) Yes. Normally, a witness cannot be impeached with unadjudcated offenses, but an exception to this general rule applies when a defendant testifies and leaves a false impression on direct examination. The State cannot open the door for itself or manufacture the false impression. Here the defendant’s direct examination testimony that he committed a bank robbery as a “crazy decision” brought on by “a perfect storm of events” at
‘the lowest point” in his life left a false impression with the jury that this was an isolated incident, and the State was permitted to correct this false impression. Such evidence was not impermissible character-conformity evidence under Texas Rule of Evidence 404(b). (3) Yes. But the rule of hearsay is eviscerated by the rule of harmless error in most cases. “The improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged.” Here the declarant in each hearsay statement, the victim, also testified to the same statements while on the witness stand. In addition, the defendant failed to object or continue to object on numerous occasions where other statements by the declarant-victim were admitted through the testimony of other witnesses.

Comment. The real problem with the State eliciting testimony from other witnesses showing the victim told them the same thing she is saying on the witness stand is bolstering under Rules 608 and 613. However, here, the defendant swung the door open by calling the victim a liar.

3rd District Austin

The Third District Court of Appeals in Austin did not hand down any significant or published opinions since the last Significant Decisions Report.

4th District San Antonio

Ex parte Carter, No. 04-20-00396-CR (Tex. App.—San Antonio, Mar. 17, 2021)

Issue. (1) Does an intermediate appellate court have jurisdiction to hear an appeal from a motion to increase bail? (2) Does an intermediate appellate court have jurisdiction to hear a writ of habeas corpus? (3) Is Appellant’s bail set unreasonably high?

Facts. Defendant’s bail was initially set at $15,000. The trial court, at request of the state, entered an ex parte order increasing bail to $400,000 without affording the defendant notice, a hearing, or an opportunity to be heard. Defendant filed a writ of habeas corpus raising two grounds for his illegal confinement: (1) that it was ordered without due process (notice, hearing, opportunity to be heard), and (2) that his bail was set at an unreasonable amount. The trial court held a hearing on the writ of habeas corpus and reduced bail to $200,000.

Holding. (1) No. “[W]e do not have jurisdiction to consider an appeal from an in interlocutory pretrial order granting a motion to increase bail because such jurisdiction has not been expressly granted by statute.” (2) Yes. We do have jurisdiction to consider an interlocutory appeal from a denial of a writ of habeas corpus. (3) No. The trial court considers factors in setting bail. First are statutory factors: (1) assure appearance, (2) not an instrument of oppression, (3) nature and circumstances of the case, (4) ability to make bail, and (5) safety of the victim and community. Next are case law factors: (1) the nature of the offense and potential sentence, (2) ties to the community, (3) length of residency, (4) employment history, (5) criminal history, (6) previous bonds and compliance therewith, (7) aggravating circumstances. Evidence presented by the state was sufficient to show that the bail amount was necessary to assure appearance at trial and protect the community.

Comment. The court is wrong to refuse jurisdiction over a writ of habeas corpus challenging pretrial confinement without due process. The court disposes of the defendant’s issue by creating a legal fiction that he appealed from the trial court’s order to increase bail. He did not. He filed a writ of habeas corpus challenging the constitutionality of his confinement, he stated two reasons why his confinement was unconstitutional (no due process, and bail too high). The court readily acknowledges they have interlocutory jurisdiction to consider final rulings on writs of habeas corpus. The trial court denied relief under the writ of habeas corpus and the defendant filed an appeal pursuant to Texas Rule of Appellate Procedure 31.1 (“when written notice of appeal from a judgment or order in a habeas corpus or bail proceeding is filed . . . ). The defendant’s denial of due process may have been mooted or rendered harmless by the subsequent hearing, but this is now a published opinion which confuses the law.

5th District Dallas

The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

The Seventh District Court of Appeals in Amarillo did not hand down any significant or published opinions since the last Significant Decisions Report.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

Joe v. State, No. 10-18-00221-CR (Tex. App.—Waco, Mar. 3, 2021)

Issue. In a theft of cargo prosecution, is the element of possession sufficiently proven by showing a person connected his semi-truck to a trailer but has not completed several other steps required to a complete connection to the trailer?

Facts. A mattress manufacturer placed a shipment of mattresses into a shipping container inside of a trailer in their shipping yard. On the night in question, the warehouse supervisor for the mattress manufacturer witnessed the defendant hook his blue Volvo semi-truck up to the trailer with the company’s mattresses. He was not supposed to be taking possession of the mattresses. As the defendant was completing the steps necessary to hook his semi-truck to the trailer (connecting the air lines), he got caught and did not complete the process.

Holding. Yes. Connecting the semi-truck to the trailer is a sufficient act of possession to prove theft of cargo despite the need for further steps to complete the connection and drive away with the cargo. “It is irrelevant to our analysis that appellant was unable to move the trailer “even an inch.”

Dissent (Gray, C.J.). Taking possession of a trailer with a semi-truck is a multi-step process which involves: “1) fifth wheel positioned properly and the locking pin closed; 2) connection of air lines as necessary to release the brakes; 3) connection of the electrical plug to have the required trailer lights; and 4) some would argue, lifting the legs/jacks/levelers. This process was not completed. This is attempted cargo theft.

Comment. The legal equivalent of the Dez Bryant catch-no-catch; except the NFL has better defined rules for possession.

Busby v. State, No. 10-18-00262-CR (Tex. App.—Waco, Mar. 3, 2021)

Issue. Can a defendant attack the legitimacy of his prior conviction used by the State at trial for enhancement purposes?

Facts. Defendant was charged with assault family violence enhanced with a prior conviction for assault family violence. At trial, the State presented a certified copy of the defendant’s prior assault family violence conviction indicating that the defendant pleaded guilty to the prior offense. Defendant presented the testimony of the prior complainant at trial who indicated that the prior assault was not an assault.

Holding. No not here. This amounts to a collateral attack on the prior judgment. A defendant can collaterally attack a prior conviction used for enhancement “only if the earlier conviction is void or tainted by a severe constitutional defect.” The law distinguishes between collateral attacks which merely show insufficient evidence and attacks demonstrating the previous conviction is based on a complete lack of evidence. Only challenges to prior convictions based on a complete lack of evidence are cognizable. Here, there is more than a complete lack of evidence. The defendant pleaded guilty to the previous conviction, which presents some evidence that he committed the previous offense.

Concurrence (Gray, C.J.). A defendant should never be allowed to collaterally attack a prior conviction in the context of a trial involving enhancement by a prior conviction.

Comment. This court uses Court of Criminal Appeals precedent pertaining to collateral attacks in the revocation context and applies it in the context of a trial. In the revocation-collateral-attack line of cases, the defendant is assigned a higher burden than he would have in a habeas corpus proceeding. But the Court of Criminal Appeals also provides “[n]othing prevents the probationer from filing an Article 11.08 or 11.09 writ application after the State has filed a motion to revoke, and nothing prevents the trial court from considering the application along with the State’s motion to revoke probation. Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim. App. 2001). So, in the context of revocation, a strict “complete lack of evidence” comes with a safety valve: “unless you have a pending writ of habeas corpus.” How does that work here, in the context of trial?

11th District Eastland

Lira v. State, No. 11-20-00148-CR (Tex. App.—Eastland, Mar. 25, 2021)

Issue. Do the Supreme Court’s COVID-19 Emergency Orders authorize a trial court to conduct a plea hearing by videoconference over objection of the defendant who invokes his right to an in-person plea in open court?

Facts. The judge made the defendant do his plea by Zoom over his objection.

Holding. No. Citing to Ogg, briefed earlier in this S.D.R., the Court noted that the Supreme Court Emergency Orders authorize courts to modify only procedural rights, not substantive rights. Texas Code of Criminal Procedure Article 1.13 mandates that a waiver of jury trial rights occur in-person unless specifically waived by written consent.

Comment. Same facts and outcome in Huddleston v. State, No 11-20-00149-CR (Tex. App.—Eastland, Mar. 25, 2021).

State v. Watson, No. 11-19-00082-CR (Tex. App.—Eastland, Mar. 31, 2021)

Issue. (1) Does a trial court abuse its discretion by choosing to believe a defendant’s testimony establishing an ownership interest in the thing searched (in order to establish standing) during a motion to suppress hearing and simultaneously choosing to disbelieve contrary statements made by the defendant at the time of the search? (2) May law enforcement conduct a protective sweep because they knocked on a door until it came ajar?

Facts. Law enforcement received a request to assist an individual in retrieving items of personal property from a room the individual rented from a homeowner. An officer met the individual at the home and knocked on the door several times until it “came open.” The officer then completely opened the door and decided to “clear” the residence by going room-to-room to “insure that nobody else was left inside the room behind the door or whatever.” Officers discovered defendant in one of the bedrooms and removed him. Once removed, and after 20 seconds of loitering in the room, the Officer discovered drugs and paraphernalia. The defendant challenged the legitimacy of conducting a protective sweep of the residence. The trial court granted defendant’s motion to suppress. 

Holding. (1) No. The trial court is the sole trier of fact and the trial court’s resolution of conflicting statements won’t be disturbed on appeal. (2) No. A protective sweep is a “quick and limited search of premises, incident to an arrest [or who are lawfully present in a residence] and conducted to protect the safety of police officers or others.” A protective sweep is permitted only when “justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” The State argues on appeal that the individual who contacted police to retrieve belongings from the home implicitly consented to their entry and, once inside, officers were justified to conduct the protective sweep. However, “consent to enter the residence, without more, does not provide consent to search the entire residence or objects therein.” Moreover, the officer’s articulated reason for entering the home was because the door was ajar. The officer did not articulate any belief that a person would be inside who presented danger to officers. No other theory of consent provided by the renting individual, implied or otherwise, authorized the search of a bedroom unrelated to the reason officers were present at the home.

Comment. I have made the mistake of routinely accepting the lawfulness of a protective sweep without considering whether there is a legitimate articulable suspicion of danger. I think many officers do, too. 

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

Cisneros v. State, No. 13-19-00652 (Tex. App. –Corpus Christi-Edinburg, Mar. 4, 2020)

Issue. (1) Do double jeopardy prohibitions prevent the State from convicting a defendant on counts of continuous sexual abuse together with unrelated or non-predicate sexual assault counts? (2) When the legislature defined continuous sexual abuse as “two or more acts” regardless of whether those acts are “committed against one or more victims,” did the legislature intend to prohibit multiple convictions when the State proves two or more acts committed each against two or more victims?

Facts. Defendant is convicted of multiple acts of sexual assault, each against two different children.

Holding. (1) Yes. Under Penal Code § 21.02(e), the legislature expressed:

A defendant may not be convicted in the same criminal action of [sexual assault offense] the victim of which is the same victim of [continuous sexual abuse] unless the [sexual assault offense]:

(1) is charged in the alternative;
(2) occurred outside the period in which the [continuous sexual abuse] was committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense of the [continuous sexual abuse].

The Court of Criminal Appeals has stated the clear legislative intent is “to disallow dual convictions for the offense of continuous sexual abuse and for offenses enumerated as ‘acts of sexual abuse’ when based on conduct against the same child during the same period of time.” This is true, even when the State does not use the relevant sexual assault conviction as a predicate offense to the continuous sexual abuse conviction. Based on this legislative intent, the offenses are the same for purposes of a double jeopardy analysis.  (2) No. Using grammar and syntax, the court determines the unit of prosecution to determine whether two charges of conviction are the same or separate offenses. Within the same statute the legislature provides that “a defendant may not be charged with more than one count [of continuous sexual abuse] if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against a single victim.” The corollary to this provision, then, is true, “a defendant may be charged with more than one count of continuous sexual abuse if multiple acts of sexual abuse are alleged to have been committed against each of multiple victims.”

State v. Ruiz, No. 13-13-00507-CR (Tex. App—Corpus Christi-Edinburg, Mar. 11, 2021)

Issue. Is a warrantless blood draw justified under exigent circumstances and probable cause when the driver of a vehicle involved in a collision flees the scene and is later discovered by police unconscious, unresponsive, and smelling like alcohol?

Facts. This case is on remand from the Court of Criminal Appeals after consideration of the United States Supreme Court’s opinion in Mitchell v. Wisconsin, ___ U.S. ___, 139 S.Ct. 2525 (2019). Defendant was the driver of a vehicle in a motor vehicle collision. When officers arrived, they discovered an empty vehicle with exploded Bud Light cans inside.  Witnesses indicated the defendant fled the scene. Officers found him in the exact location where witnesses indicated he fled.  Defendant smelled like alcohol, and he was unconscious, unresponsive, wouldn’t open his eyes, and unphased by EMS sternum rubs.

Holding. In Mitchell v. Wisconsin the U.S. Supreme Court indicated “the exigent-circumstances rule almost always permits a blood test without a warrant” in cases where the driver is unconscious and therefore cannot be given a breath test. An exigency exists when: (1) blood alcohol content is dissipating, and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. “Both conditions are met when a drunk-driving suspect is unconscious . . .” Mitchell at 2537.

Comment. The officer testified that it would not have been feasible to get a blood warrant as only two officers were on duty or that it would have taken her 2-3 hours to get one. A blood warrant can be faxed or emailed, but the officer testified that in Gonzales County there aren’t procedures to do this. The Court here accepts unspecified general “other police duties” which had to be done in the same night as satisfaction the pressing-needs requirement. It sounds like there is an argument that the exigency is one of law enforcement’s own making. Longstanding precedent provides that law enforcement cannot create their own exigencies. This is at least food for thought.

14th District Houston

Wiggins v. State, No. 14-20-00076-CR (Tex. App.—Houston [14th Dist.] Mar. 16, 2021)

Issue. Does the assignment of a senior judge to preside over a defendant’s trial violate the Texas Constitution when the elected district judge is not “absent,” “disabled,” or “disqualified from presiding?”

Facts. Defendant’s case was tried before a senior judge assigned by the regional administrative judge “for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.”

Holding. Defendant relies on the last paragraph of Article V, § 7 of the Texas Constitution: “The legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding.” However, nothing in the text indicates the legislature lacks additional authority to enact legislation allowing the assignment of judges to sit even when the elected judge is not absent, disabled or disqualified.

Comment. Expressio unius. Fellow nerds, are you with me?

Perales v. State, No. 14-19-00236-CR (Tex. App.—Houston [14th Dist.] Mar. 25, 2021)

Issues. (1) Can the State satisfy the element of solicitation of “an individual” when an adult detective poses as a fictional individual for purposes of an online solicitation of a minor sting operation? (2) Is a showing by the defendant that law enforcement created ambiguity regarding the age of a fictional individual sufficient to shift the burden to the State to disprove entrapment beyond a reasonable doubt in an online solicitation of a minor case?

Facts. Defendant started a conversation on the Plenty of Fish dating app with a user named Jennifer who identified herself as an 18-year-old. As the conversation progressed, Jennifer disclosed that she was actually only 16. Defendant acknowledged this fact and proceeded to discuss detailed plans for sexual intercourse. Jennifer suggested that defendant come over and meet her at her parent’s house. Defendant agreed. While en route, defendant told Jennifer that he felt like he was being set up, told her she sounded older than 16, and told her he was suspicious that Jennifer was a detective. Defendant was ultimately undeterred by his correct instincts. Jennifer was a detective. The defendant was arrested on arrival.

Holding. (1) Yes. “The statute is meant to permit police officers to pose as minors to intercept sexual predators.” (2) No. Entrapment requires a showing that the defendant was actually induced to commit a crime by the persuasiveness of police conduct, and (2) the persuasion was such as to cause an ordinarily law-abiding person of average resistance to commit the offense. Here the State presented evidence, through the detective posing as a minor, that ordinarily individuals would disengage in conversation once learning the age of the fictitious individual she posed as. Because the defendant failed to show he was objectively induced, the defendant did not adequately raise the defense of entrapment, and thus the burden never shifted to the State to disprove beyond a reasonable doubt.

Rodgers v. State, No. 14-19-00216-CR (Tex. App.—Houston [14th Dist.] Mar. 30, 2021)

Issue. (1) Does it mean anything when an officer says: “you are not arrested right now, you are detained?” (2) does the act of perpetuating a false identity constitute a refusal to identify under the Failure to Identify statute?

Facts. Despite the possible variations of the crime of failure to identify established by the facts of this case, defendant was prosecuted for failure to identify as a fugitive (while under custodial arrest). Defendant was detained by a loss prevention officer at Wal-Mart. When an officer arrived, he requested defendant’s name. Defendant gave a fictitious name. The officer testified at the moment of Appellant’s false identification he was not under arrest, but rather detained. The officer’s body camera video shows that after this exchange, and while the officer was searching defendant’s pockets, defendant asked why he was being detained. In response, the officer informed the defendant he was not under arrest. The officer then read defendant his Miranda rights in order to interrogate him about the theft. Mid-interrogation, loss prevention officers alerted the officer to the discovery of stolen property in defendant’s backpack. The officer confronted defendant about lying, ordered him to sit down, and reiterated he was not under arrest and instead merely detained.

Holding. (1) No. At least it was not significant here in a failure to identify as a fugitive case where the burden is on the State to establish a lawful arrest. When it is clear to a suspect that an officer has gained probable cause and then steps up his tone, demeanor, and commands, the admonishment of “you are not arrested right now, you are detained” would not lead a reasonable person to believe the officer’s assertion is an honest one. (2) Yes. Here, the court declines to accept Defendant’s post-Miranda silence as an act of refusing to identify, given that he had previously given a false name. Providing the officer with a correct name at this juncture would have been self-incriminating. However, defendant’s comments perpetuating the charade of a false name after being placed under arrest was sufficient evidence to sustain a conviction of Failure to Identify as a Fugitive while under custodial arrest.

Dissent (Spain, J.). He eventually identified himself during the purported criminal transaction. That was good enough to negate the offense.

Comment. We’ll let’s see if this logic holds up in a suppression hearing where the police fail to read a future suspect their Miranda rights. Something tells me this goose sauce will not taste as good on the gander.

 State v. Temple, No. 14-20-00388-CR (Tex. App.—Houston [14th Dist.], Mar. 30, 2021)

Issue. Do the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster which permit trial courts to “modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order” allow a court to grant shock probation (order probation after having served partial sentence) after the trial court’s 180 deadline to exercise such jurisdiction expires?

Facts. The trial court granted shock probation on a drug case two weeks after the trial court’s 180 post-sentence jurisdiction expired. The court cited the Supreme Court order permitting the suspension or modification of deadlines.

Holding. No. Pursuant to this month’s Court of Criminal Appeals decision in In re State ex rel. Ogg, a trial court may not use the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster to grant itself jurisdiction where there would otherwise be none.

Comment. During this time in the pandemic—February through April of 2020— most of the government went on total shutdown without a clear plan for operation. In most jurisdictions, inmates were not being transferred between jails and prisons, nor were they being brought to court. The State argued in their briefing that physical presence is not required to grant shock probation. It is hard to tell whether the ball got dropped, or the pandemic prevented the resolution of this matter within the trial court’s 180-day post-sentence jurisdiction. This issue could potentially be resolved with a writ of habeas corpus, but the defendant is (or was) serving a ten-year sentence on a drug offense. He is likely on parole already. According to TDCJ’s offender lookup – he is not currently in TDCJ custody. So, the tree falling in the forest doctrine remains intact.

Ex parte Fusselman¸No. 14-20-00549-CR (Tex. App.—Houston [14th Dist.] Mar. 30, 2021)

Issue. Is Texas’s child pornography statute facially overbroad for any of the following reasons: (1) because it punishes the possession of pornography involving 17-year-olds who are adults for purposes of engaging in sexual conduct? (2) because it expands the definition of forbidden content beyond that explicitly accepted as child pornography by the United States Supreme Court? (3) because it prohibits possession of images depicting minors engaging in simulated sexual conduct?

Facts. Defendant was charged with possession of child pornography and filed a pretrial writ of habeas corpus raising a facial challenge to the First Amendment legitimacy of Texas’s child pornography statute.

Holding. A statute is facially overbroad and violates the First Amendment if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” The government must justify content-based restrictions on speech by showing the prohibition is narrowly drawn and serves a compelling state interest. (1) No. That a 17-year-old can consent to sex “does not compel the conclusion that the same child can consent to participate in pornography.” Pornography is exploitative and the State has a compelling interest in protecting children from exploitation. Possession of child pornography is not an offense against the child, but rather an offense against the “public decency and order.” Like in the case of prostitution, a public decency and order offense, a prostitute’s consent to sexual conduct does not make the conduct legal. Sister courts have applied similar logic to reject challenges raised against the criminalization of sexual performance by a child which sets the relevant age of a minor at “younger than 18.” (2) No. “the crucial question is on whether the depiction is lewd . . .” Osborne v. Ohio, 495 U.S. 103 (1990). The fact that the Texas statute prohibits lewd exhibition of body parts not specifically contemplated by the Supreme Court in cases where it has analyzed statutes pertaining to lewd exhibition does not render it unconstitutionally infirm. (3) Virtual child pornography (adults who look like minors or computer-generated images of minors) is protected speech. However, the Texas statute does not prohibit virtual child pornography or depictions of individuals who appear to be minors. The Texas statute, instead, prohibits possession of material that depicts an actual child involved in simulated sexual acts.

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Previous Story

April 2021 SDR – Voice for the Defense Vol. 50, No. 3

Next Story

June 2021 SDR – Voice for the Defense Vol. 50, No. 5

Latest from SDR